An insurer must maintain the obligation to indemnify buyers for hidden defects in the construction of properties acquired under the Housing Finance System (SFH). Even after the financing contract has been settled.
The understanding was established by the Third Panel of the Superior Court of Justice (STJ) in granting the appeal of buyers of properties financed under the SFH. They requested insurance coverage for construction defects, which were only revealed after the financing had been settled.
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According to the case records, the houses that were the subject of the action, built in a housing complex in Natal, presented cracks, fissured walls, falling plaster, and instability of the roofs. Faced with the threat of collapse, the owners sought the courts so that the insurer contracted together with the financing would carry out the repairs.
At first instance, the insurer was ordered to pay the plaintiffs, as indemnification, the individual amounts necessary to recover the properties. However, the Court of Justice of Rio Grande do Norte (TJRN) granted the insurer’s appeal and dismissed the request. The buyers then appealed to the STJ.
Insurer – coverage
According to the rapporteur, Justice Nancy Andrighi, housing insurance is a mandatory requirement to finance a property under the SFH. This is because housing insurance has a differentiated configuration as it is part of the national housing policy, intended to facilitate the acquisition of one’s own home, especially by the lower-income classes.
The Justice further explained that housing insurance is a mandatory contract with the objective of protecting the family and the property and guaranteeing the respective financing, “thereby safeguarding the public resources directed at maintaining the system.”
“From whatever angle the matter is analyzed, it is concluded, in light of the parameters of objective good faith and the contractual protection of the consumer, that structural construction defects are covered by housing insurance, whose effects must extend over time, even after the conclusion of the contract, to cover the loss concurrent with its validity, even if it is only revealed after its termination (hidden defect),” the Justice clarified.
Good faith
Nancy Andrighi stated that, as the Civil Code provides, the insurance contract, both at its conclusion and in its performance, is founded on the good faith of the contracting parties, on conduct of mutual loyalty and trust, and is qualified by legal scholarship as a true “good-faith contract.”
In this way, according to the rapporteur, objective good faith requires the insurer to provide clear and objective information about the contract so that the insured understands, with precision, the scope of the contracted guarantee. It also requires the insurer to avoid subterfuges in attempting to exempt itself from its liability with respect to the risks previously covered by the guarantee.
In granting the appeal and reversing the judgment of the TJRN, the Justice stated that, when the existence of structural defects covered by housing insurance is established, the appellants must be duly indemnified for the losses suffered, as established by the policy.
Source: STJ
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